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Two employees show up late on the same Tuesday morning.
Same department. Same manager. Same 20 minutes.
Bob gets a verbal warning. His manager jots nothing down. Life goes on.
Sarah gets a written warning in her file. Performance concerns are noted. Everything is documented.
Three months later, you terminate Sarah for ongoing performance issues. She lawyers up.
Her lawyer doesn’t argue about the performance. He argues about Bob.
“Why was my client written up for the same conduct that resulted in nothing for her colleague? Is it because she’s protected ground?”
You can’t explain it. There’s nothing in Bob’s file. No documented reason for the different treatment. No policy applied consistently across your team.
You just handed Sarah a discrimination claim.
Most employers understand that having no policy is a problem. Fewer understand that having a policy you enforce inconsistently can be worse.
Why: Selective enforcement creates a paper trail of differential treatment. Courts and human rights tribunals don’t just look at whether a policy exists — they look at how it’s been applied. If you enforce a rule against one employee but not another, you need a documented reason why.
Without that reason, the gap becomes evidence of discrimination, favouritism, or bad faith.
Human rights complaints. Every province has a Human Rights Code protecting employees from discrimination based on protected grounds — race, gender, age, disability, religion, sexual orientation, family status, and more. When Bob gets a pass and Sarah gets written up, Sarah doesn’t need to prove you intended to discriminate. She needs to show the protected ground was a factor — even one factor among many. Inconsistent enforcement is exactly the kind of evidence that supports that inference.
Wrongful dismissal. If you terminate for cause but haven’t enforced the relevant policy consistently, courts may find cause wasn’t established. “You tolerated this behaviour in other employees — you can’t now rely on it for just cause against this one.” Progressive discipline is undermined when some employees move through the stages and others get quiet passes.
Constructive dismissal. Selectively applying rules to one employee in a way that makes their working conditions intolerable — even unintentionally — can support a constructive dismissal claim. Sarah doesn’t have to be fired. She can quit and sue.
Manager discretion without documentation. Each manager handles issues their own way. No central record of how similar situations were handled across the team. Result: employees in different departments or under different managers are treated differently for the same conduct — and no one can explain why.
The Good Employee Exception. High performer commits the same infraction as an average performer. High performer gets a quiet word. Average performer gets a warning. Feels fair in the moment. Becomes a discrimination claim later if the two employees differ on any protected ground.
The Long-Tenured Exception. Ten-year employee gets leeway that a two-year employee doesn’t. Sometimes defensible — prior clean record is a legitimate factor in progressive discipline. But only defensible if it’s documented. “We gave Bob more latitude because of his track record” needs to live in the file.
Informal Warnings That Don’t Exist. Manager “has a word” with Bob. Doesn’t write it down. Three months later, Bob gets a formal written warning for the same issue. Bob claims he was never warned. There’s nothing to contradict him.
The Investigation That Only Happens Sometimes. One harassment complaint gets a full investigation. Another gets an informal conversation between managers. Both complainants have different experiences and outcomes. Without a written investigations process applied consistently, you’re exposed on both files.
Consistency doesn’t mean identical treatment — it means defensible, documented differentiation.
There are legitimate reasons to treat similar situations differently: prior disciplinary history (documented), severity of the specific incident, the employee’s response and acknowledgment, mitigating circumstances like a first offence or personal crisis.
The key is that the reason needs to exist in writing. “We gave Bob a pass because it was his first offence, he immediately acknowledged the issue, and he apologized” — defensible. “We gave Bob a pass because we like Bob” — not defensible, and now potentially discriminatory.
A written progressive discipline policy. Verbal warning, written warning, final written warning, termination. Defined triggers for each stage. Defined exceptions for what constitutes grounds for immediate termination. Not a guideline your managers know about — a written policy employees have signed.
Documentation at every stage. Even verbal warnings get a note: date, what was discussed, employee’s response, manager’s name. Formal warnings in writing, signed by the employee or noting if they refused. Kept in the personnel file.
HR or management sign-off on formal discipline. Formal warnings and terminations shouldn’t be unilateral manager decisions. A review process catches inconsistencies before they become claims — not after.
Training your managers. The inconsistency almost always comes from managers, not from the policy. Managers need to know what requires documentation, what requires HR involvement, and what constitutes a formal warning versus a conversation. “I’ll handle it” is not a discipline process.
Sarah files a human rights complaint with the provincial tribunal. Investigation launched. Your HR records subpoenaed.
Bob’s file: empty. Sarah’s file: documented.
You can’t explain the difference.
Human rights damages don’t have a cap in most Canadian provinces. Settlements in these cases commonly run $25,000 to $75,000 — before legal fees. Add the cost of management time, the internal damage to team morale, and the credibility hit your managers take when the team finds out.
All from one Tuesday morning when two people showed up late.
Inconsistent enforcement creates a record of differential treatment. If one employee is disciplined and another isn’t for the same conduct, with no documented reason, that gap can become evidence of discrimination, favouritism or bad faith in a human rights complaint, and it can undermine just cause in a wrongful dismissal claim.
No. Consistency means defensible, documented differentiation, not identical treatment. Prior disciplinary history, the severity of the incident, the employee’s response and acknowledgment, and mitigating circumstances like a first offence can all justify different outcomes. The reason has to exist in writing, every time.
Yes. An employee doesn’t need to prove you intended to discriminate. They need to show a protected ground, such as race, gender, age, disability or religion, was a factor, even one among many. Treating the same conduct differently without a documented reason is the kind of evidence that supports that inference.
A written progressive discipline policy employees have signed, with defined stages from verbal warning to termination. Documentation at every stage, including notes on verbal warnings. HR or management sign-off on formal discipline. And trained managers, because inconsistency almost always comes from managers rather than the policy itself.
RascalHR’s Employee Policy Manual includes a built-in performance management and discipline policy with a clear progressive discipline framework your managers can actually follow. Documentation standards for verbal warnings, written warnings, and terminations. Consistent expectations across your whole organization — not manager by manager.
The paper trail that protects you when Sarah’s lawyer comes calling.
Inconsistent enforcement isn’t just unfair — it’s legally dangerous.
You don’t need to treat every employee identically. You need to be able to explain why you didn’t. Write down the reason. Every time. Even when it seems obvious in the moment.
The managers who “handle it their own way” are the ones creating your liability.
Same issue. Different response. Get a documented reason — or get a lawyer.
Build the documentation trail that protects you when it matters →